in the Interest of J.F., a Child

• Court: Court of Appeals of Texas
• Decided: June 13, 2019
• Docket: 07-19-00174-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-19-00174-CV ________________________

IN THE INTEREST OF J.F., A CHILD

On Appeal from the 137th District Court Lubbock County, Texas Trial Court No. 2017-527,563; Honorable John J. “Trey” McClendon III, Presiding

June 13, 2019

ORDER DIRECTING APPOINTMENT OF APPELLATE COUNSEL Before QUINN, C.J., and PIRTLE and PARKER, JJ.

Appellant, B.T., appeals from the trial court’s order terminating her parental rights

to her son, J.F.1 B.T. was represented by appointed counsel at various times during the

termination proceedings, but is currently without appellate counsel.

1 To protect the privacy of the parties involved, we refer to them by their initials. See TEX. FAM.

CODE ANN. § 109.002(d) (West Supp. 2018). See also TEX. R. APP. P. 9.8(b). The father of J.F. signed an affidavit of voluntary relinquishment of his parental rights and did not appeal. The termination proceedings began in October of 2017. On November 2, 2017,

the trial court appointed Ms. Lezlie Olibas as B.T.’s trial counsel. Ms. Olibas subsequently

moved to withdraw and to substitute Mr. Charles Chambers as retained counsel. The trial

court granted the motion on March 14, 2018. On August 15, 2018, Mr. Chambers also

moved to withdraw as counsel. The record does not contain an order permitting Mr.

Chambers to withdraw, but B.T. appeared pro se at the termination proceedings before

the associate judge. The associate judge signed an order of termination on October 24,

2018. That day, proceeding pro se, B.T. filed a request for de novo hearing. On February

27, 2019, the referring court signed an order finding B.T. indigent and appointing Mr.

James Moore as counsel. Mr. Moore represented B.T. at the de novo hearing before the

referring court on May 16, 2019.

Based on the evidence presented at the final hearing, the referring court signed an

order terminating B.T.’s parental rights on May 21, 2019. The court found clear and

convincing evidence that B.T. (1) knowingly placed or allowed the child to remain in

conditions or surroundings which endangered his well-being, (2) engaged in conduct or

knowingly placed the child with persons who engaged in conduct which endangered his

well-being, and (3) failed to comply with a court order that established the actions

necessary for the parent to obtain the return of the child following his removal under

chapter 262 of the Family Code. TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), & (O)

(West Supp. 2018). The trial court also found that termination of B.T.’s parental rights

was in her child’s best interest. § 161.001(b)(2). That day, Mr. Moore filed a notice of

appeal and a motion to withdraw as counsel. In his motion to withdraw, Mr. Moore

requested appointment of new appellate counsel for B.T. On June 3, 2019, the referring

2 court signed an order allowing Mr. Moore to withdraw, but to this date, B.T. remains

without representation to pursue this appeal.

The natural right existing between parents and their children is of constitutional

dimension. See Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 71 L. Ed.

2d 599 (1982). See also Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Recently, the

Texas Supreme Court reiterated that “[o]ne of the most fundamental liberty interests

recognized is the interest of parents in the care, custody, and control of their children.” In

re N.G., No. 18-0508, 2019 Tex. LEXIS 465, at *6-7 (Tex. May 17, 2019) (per curiam)

(citing Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000)). A

parent must be permitted to appeal the termination of parental rights, and due process

requires that the appeal be meaningful. In re N.G., 2019 Tex. LEXIS 465, at *8.

In a suit filed by a governmental entity to terminate the parent-child relationship,

appointment of counsel for an indigent parent is mandatory. See TEX. FAM. CODE ANN. §

107.013(a)(1) (West 2019). When the trial court determines that a parent in a termination

proceeding is indigent, a presumption of indigence is created for the duration of the suit

and any subsequent appeals absent “a material and substantial change in the parent’s

financial circumstances.” § 107.013(e). The Texas Supreme Court has recognized that

the statutory right to counsel in a termination proceeding filed by a governmental entity

applies to all proceedings, including the filing of a petition for review. In re P.M., 520

S.W.3d 24, 27 (Tex. 2016) (per curiam).

Accordingly, we direct the trial court to appoint B.T. appellate counsel to pursue

this appeal. The name, address, e-mail address, telephone number, and state bar

3 number of newly-appointed counsel shall be provided to the clerk of this court in an order

from the trial court. A supplemental clerk’s record containing the trial court’s order shall

be filed with the clerk of this court on or before June 24, 2019.

B.T.’s appellate brief shall be due within twenty days after the order appointing

counsel is signed.

It is so ordered.

Per Curiam